NEW INDIA ASSURANCE CO LTD Vs. SARJABAI

JUDGEMENT

(1.) Heard Advocate Shri A.J. Pophlay appearing on behalf of the appellant and Advocate Shri S.C. Mehadia appearing on behalf of the respondent No.4.

(2.) Advocate Shri Pophlay has expressed some difficulty as he has received the brief today in the Court only. He contends that he could not get time to read the matter entirely and he is arguing only upon oral instructions given by the officer of Insurance Company to him while handing over the brief. He argues that all victims in the accident were occupying goods transport vehicle i.e. truck carrying bricks. He states that they were sitting on the bricks along with their baskets filled with fishes and they had also paid some charges for such journey from one place to another place. He, therefore, argues that they were unauthorised persons occupying goods vehicle and hence as there was breach of policy, the insurance company could not have subjected to any liability in relation to claim of the respondents. He further states that in view of express provision in Motor Policy Exh.37 restricting the liability for insurance company to Rs.50,000/- for one accident, the insurance company could not have been directed to pay Rs.31,000/- to present respondents. He states that there were some earlier appeals in which the cases of victims in same accident have been considered by this Court. According to him, total amount of liability of insurance company payable in respect of all claim petitions decided by Motor Accident Claims Tribunal cannot exceed Rs.50,000/-. In support of his contention, he also places reliance upon Clause (b) of sub Section (2) of Section 95 of the Motor Vehicles Act, 1939. He states that this argument of ceiling upon liability of insurance company is in the alternative and first argument itself is the main plank of argument of insurance company.

(3.) Advocate Shri S.C. Mehadia for the respondent No.4, on the other hand, points out that this Court has in relation to very same accident decided other appeals i.e. First Appeal Nos.483/1991, 485/1991 and 478/1991 delivered on 10.11.2006. He points out that this Court had directed the insurance company to deposit the amount as awarded by Motor Accident Claims Tribunal and to recover it from the vehicle owner i.e. the present respondent No.4. According to him, same view also needs to be taken in this matter.